Robert Thomas: The Draft Wales Bill 2015 – Part 1

Editors’ note: This is the first in a two-part contribution by Prof Robert Thomas on the draft Wales Bill. The second part will appear tomorrow, 3 December 2015.

This post examines the background to the draft Wales Bill, its principal features, and the provisions concerning ministerial powers.

On 20 October 2015, the UK Government published the draft Wales Bill. The overall purpose of the Bill is to implement the UK Government’s St David’s Day “Agreement” of February 2015 in order to establish a clear and lasting devolution settlement for Wales. That agreement followed the publication of the Silk II report in 2014. The Silk report concluded that the Welsh devolution scheme was unstable and unclear and that there was often uncertainty over which government – the UK or Welsh Governments – was responsible for which policy area. The report recommended the move from a conferred powers model to a reserved powers model in order to provide greater clarity and certainty regarding the division of powers between the UK and the Welsh Assembly. (For an excellent overview, see Ann Sherlock, “The Continuing Development of Devolution in Wales” (2015) 21 European Public Law 429).

The draft Bill is currently undergoing pre-legislative scrutiny by both the Commons Welsh Affairs Committee and the Constitutional and Legislative Affairs Committee of the Welsh Assembly. The importance of the Bill cannot be overstated: it proposes to establish a clear and lasting devolution settlement for Wales by moving from a conferred-powers model to a reserved-powers model. In his forward to the draft Bill, Stephen Crabb MP, Secretary of State for Wales, stated that the Bill would “create a stronger, clearer and fairer devolution settlement for Wales that will stand the test of time.”

However, since its publication, there has been intense debate and disagreement as to whether or not the Bill will in fact deliver a stable, clear and lasting devolution settlement for Wales. Immediately following the publication of the Bill, the Presiding Officer of the Welsh Assembly stated that her support for the Bill was conditional on it meeting three key criteria: clarity, workability, and no roll-back of the Assembly’s existing powers. Assessing the Bill against these criteria, the Presiding Officer concluded that the Bill “would amount to a backwards step for the National Assembly and would not deliver a lasting constitutional settlement for Wales and the UK as a whole”. If the Bill was enacted, there would be almost immediate calls for another Wales Bill. The First Minister of Wales, Carwyn Jones AM, has also raised concerns that the new Bill would not, if enacted, introduce the desired stable devolution settlement. Instead, the Bill would lead to additional complexity, increase the UK Government’s veto over the legislative powers of the Welsh Assembly, and roll-back some of the Welsh Assembly’s current competences. The purpose of this contribution is to examine some of these concerns – in particular the issues concerning the legislative competence of the Assembly.

The Bill arrives against the following background. There have, of course, been previous constitutional statutes for Wales in 1999 and 2006 and the flaws and shortcomings of those statutes have been much discussed. The devolution scheme for Wales has been seen as unstable, complex and marked by silences and uncertainties as to which areas have and have not been devolved. Further, the devolution scheme for Wales has differed in various respects from those in Scotland and Northern Ireland for two reasons. There is the shared legal system between England and Wales, which creates additional complexity. Also, fewer matters have been devolved to Wales when compared with Scotland and Northern Ireland. A referendum in 2011 produced a majority in favour of the Welsh Assembly exercising primary legislative powers. There have also, over recent years, been three references to the Supreme Court concerning the legislative competence of the Welsh Assembly (see previous blogs by Adam Tomkins, Ann Sherlock, and Alan Trench). It is generally recognised that it would be preferable to reduce the possibility of future litigation to ensure that there is certainty and clarity concerning the powers and competence of the Welsh Assembly.

At a political level then, there is a need to introduce a stable and clear devolution settlement for Wales. The current Bill will be the only opportunity to do this during the current Parliament. The perception is that there has been an ongoing debate in Wales for some years now over constitutional issues. However, there are real concerns whether the model provided by the draft Bill is adequate.

Some key features of the draft Bill

To start with, there are some important and relatively uncontentious aspects of the Bill that are welcome. Mirroring the current Scotland Bill, the draft Wales Bill recognises that both an “Assembly for Wales” and the Welsh Government would be permanent parts of the UK’s constitutional arrangements. It also formally recognises that the UK Parliament cannot normally legislate with regard to devolved matters without the Assembly’s consent. The Bill would also require a super-majority in the Assembly for certain electoral legislation. A two-thirds majority would be required in the Assembly to legislate on the following matters: whether to change its name from Assembly to Parliament; the franchise for elections (for instance, whether to lower the voting age to 16); the voting system; the number of constituencies and regions or other electoral areas; and the number of members to be returned for each constituency, region or area.

A central aspect of the Bill concerns the move from a conferred-powers model to a reserved-powers model. Since the inception of Welsh devolution, a conferred-powers model has been used. Under the Government of Wales Act 2006, the Assembly only possesses legislative competence on those subjects that have been specifically attributed to it. By contrast, Scotland and Northern Ireland both have a reserved-powers model: the Scottish Parliament and Northern Ireland Assembly can legislate in all areas other than those explicitly reserved to the UK Parliament.

Given the anomalous position of Wales – the only devolved nation with a conferred-powers model – the Bill seeks to move to a reserved powers model. It does so by introducing general reservations (the Constitution, the Civil Service, political parties, the single legal jurisdiction of England and Wales, foreign affairs, and defence). There is also a long list of over 200 specific policy reservations. New powers would be devolved over areas such as energy, transport and local government and Assembly elections. However, there are some areas – in particular policing – that remain with Westminster despite a recommendation from the Silk Commission that it be devolved.

Minister of the Crown powers

One controversial aspect of the Bill concerns Minister of the Crown powers. These are the many and various powers conferred upon Ministers of the Crown prior to devolution. When Welsh devolution was first introduced, the powers of the Secretary of State for Wales were transferred to the Assembly. However, many powers exercised by other UK Ministers were not transferred – even though they concerned areas that were devolved. The result is a haphazard arrangement whereby UK Ministers retain powers on areas devolved to Wales. The upshot is that executive and legislative responsibilities do not neatly map onto each other. This state of affairs continues to present a real problem.

Under the Government of Wales Act 2006 the Assembly cannot remove or modify any pre-commencement (ie pre-2011 – when the Assembly acquired legislative powers) function of a Minister of the Crown unless the Secretary of State consents or if the removal or modification is incidental to, or consequential on, any other provision contained in the Act of the Assembly (Government of Wales Act 2006, Schedule 7, part 2, para 1 and part 3, para 6). For instance, in the Local Government Byelaws (Wales) case, the Assembly was able to remove the Secretary of State’s right to confirm the making of byelaws in Wales because this was incidental and consequential. This provided a possible way for the Assembly to legislate on ministerial powers.

In 2014, the Silk II report recommended that, in order to reduce complexity and increase clarity, there should be a general transfer of Minister of the Crown functions to Welsh Ministers in non-reserved areas (subject to any necessary restrictions). This would promote alignment between legislative and executive competence. It would also bring Wales into line with the position in Scotland. Under section 53 of the Scotland Act 1998, UK ministerial powers within the devolved competence of the Scottish Parliament were transferred from UK to Scottish ministers (apart from some exceptions under section 56).

It might therefore be thought that the draft Bill would implement this Silk recommendation, but no. On the contrary, the Bill introduces new restrictions upon the Assembly’s current legislative competence under the 2006 Act. Under the draft Bill, the Assembly could not legislate to remove, modify or confer a function of a “reserved authority” (which includes a Minister of the Crown and any other non-Welsh public authority) – unless the appropriate UK Minister consents. This would be the case even if the ministerial power or function concerned is within the Assembly’s devolved competence.

The draft Bill restricts the Assembly’s powers with regard to Minister of the Crown functions in at least three ways. First, the draft Bill does not – unlike the 2006 Act – include provision to remove or modify a function of a UK Minister where to do so would be incidental or consequential. This means that the UK Government would recover the ground lost following the Supreme Court’s judgment in the Local Government Byelaws (Wales) case by reversing the effect of that judgment. Reducing the scope of the Assembly’s powers in this respect means that it has less room for manoeuvre – which clearly generates causes for concern. Second, the new provisions would apply to all functions – not just pre-commencement (ie pre-2011) functions. For instance, in 2013, the Assembly enacted the Human Transplantation (Wales) Act 2013 which imposed functions upon the Human Tissue Authority: consent from the UK government was not required under the 2006 Act. However, under the draft Bill, consent from a UK minister would now be required. Third, the draft Bill extends the range of bodies that would have to consent to any change: this would include not just UK Ministers, but also public authorities.

Furthermore, the Bill makes the Assembly’s legislative competence dependent not upon a clear rule written into statute, but upon a decision by a UK Minister to grant or withhold consent. In other words, the Assembly’s competence to modify such powers would be dependent upon the discretion of a Minister of the Crown. Such Ministers will, of course, vary over time. Different Ministers will reach different decisions concerning the modification of their powers. This further undermines the claim that the Bill will provide a clear and certain devolution settlement.

While the Welsh Government can ask UK government departments for their consent to modify Minister of the Crown powers, such requests often take months to resolve. According to the First Minister, to enact the Social Services and Well-being (Wales) Bill, it was necessary to get consent from seven different Whitehall departments. Discussions were started in February 2012, but 16 months later, some of the consents still had not been received. There has been a delay of over one year for the Welsh Government to receive consents concerning the Environment (Wales) Bill 2015. Overall, the effect is to delay the Assembly’s legislative process and its ability to make and implement policy effectively.

It is difficult to understand the rationale for the provisions in the draft Bill – other than a desire by UK Ministers to hold on to and claw-back ministerial powers. It would be reasonable to assume that the position in the 2006 Act would provide a floor against which a future devolution settlement would build upon. As noted above, the Silk report recommended the general transfer of Minister of the Crown functions. The only rationale advanced so far for the provisions in the draft Bill has been the following statement by the Secretary of State for Wales to the Commons Welsh Affairs Committee on 26 October 2015:

“This idea that somehow you can have a devolution settlement where Welsh Government can make legislation for Wales that also affects England, but by the way, they do not have to have any regard for the views of UK Government Ministers as to how it affects England, if you follow the logic of some of the statements being made in Cardiff Bay last week in response to the draft Bill, that is the position you get to. That is lawless. You need devolution with rules; you need a rules-based approach to this to get clarity…”

There are three obvious difficulties here. First, the need to obtain Minister of the Crown consents applies when the Assembly is legislating on devolved (non-reserved) matters – areas in which the UK Government has no interest or responsibility. Second, the notion that the draft Bill introduces a rules-based approach is immediately contradicted by the exercise of ministerial discretion whether or not to give consent. Third, there is the issue of accountability. When making such decisions UK ministers are accountable to the UK Parliament – yet the whole purpose of establishing the Welsh Assembly was to remedy the democratic deficit that existed in Wales.

A preferable approach would be to have a general transfer of powers with specific exceptions. This is the position in Scotland. Alternatively, at the very least, the draft Bill could apply to pre-commencement functions only and include provision for incidental or consequential changes. Looking forward, it is likely that the new provisions would, if enacted, create another avenue for litigation: any refusal by a UK Minister to consent to Assembly legislation changing a Minister of the Crown function could be challenged through judicial review by the Welsh Assembly and Government.

The second part of this blog will consider the issue of legislative competence and in particular the proposed necessity test.

Robert Thomas is Professor of Public Law at the School of Law, University of Manchester.